There was a dispute before the Constitutional Court on whether the Labour Court had jurisdiction to strike down legislation‚ other than that within its jurisdiction.

In a majority judgment written by Justice Bess Nkabinde on Thursday‚ she said the Labour Court was a court of similar status to that of the high court.

“The Labour Court is‚ in terms of … the Constitution‚ a Court of similar status as a High Court. It may thus make an order of constitutional invalidity of an Act of Parliament‚ which has no force unless it is confirmed by this Court in terms of … the Constitution‚” Nkabinde said.

In confirming the invalidity of section 38(2)(b)(ii) of the Public Service Act‚ Nkabinde said the section undermined a deeper principle underlying the country’s democratic order.

“The deductions in terms of that provision constitute an unfettered self-help − the taking of the law by the state into its own hands and enabling it to become the judge in its own cause‚” Nkabinde said.

Nkabinde also referred the matter back to the Labour Court to determine the disputes between the Public Service Association and the head of department of heath in Gauteng.

“The disputes include the correctness of the recovery of the amounts allegedly overpaid to Ms Ubogu and whether the translation of her position as Clinical Manager: Medical affected her starting package on the new position.”

She also ordered the Minister of Public Service to pay the costs of the union.

In a lone dissenting judgment‚ Justice Chris Jafta said the Labour Court was not empowered to strike down the legislation.

“While it is true that deductions made on Ms Ubogu’s salary may have violated her fundamental rights and as a result the Labour Court had jurisdiction to entertain that dispute‚ it did not follow automatically that the Labour Court could declare invalid the Act in terms of which the deductions were effected‚” Jafta said.

* Nkabinde will be retiring at the end of the year after serving 12 years as a justice of the court. A formal court session was held in her honour on Thursday.